Energy & Critical Minerals · Lithium & Brine
Brine leases, brine mineral title, Railroad Commission brine production permits, and project structure for lithium development in East Texas — from counsel working on these questions in Franklin, Hopkins, Titus, Cass, and Bowie counties today.
The Smackover Formation under Northeast Texas holds some of the highest-grade lithium brine in North America, and the legal framework around it is being written while the leases are being signed. We represent the developers, operators, investors, and landowners doing that work — on title, leases, permits, and project structure.
Drafting, negotiating, and reviewing brine and lithium leases, amendments to existing oil and gas leases to add brine rights, surface-use and access agreements, and salt-water disposal conversions.
Title examination and opinions that reach a defensible conclusion on which estate holds the right to produce brine and extract dissolved minerals on a given tract, with a curative program to match.
Advising developers on whether a project that recovers minerals from geothermal or produced fluid falls under Statewide Rule 46 or the Rule 82 brine production program, and preparing the corresponding application.
Rule 46 GT-5 injection permits for geothermal wells, Rule 82 brine production permits and Class V spent-brine return wells, P-5 and financial assurance, EPA Class V coordination while primacy is pending, and representation in protested dockets. Railroad Commission practice.
Project entities, joint ventures between acreage holders and technology partners, area-of-mutual-interest agreements, and the contractual unitization work that Texas law does not yet supply.
Purchase and sale agreements for brine lease packages, title due diligence, assignment and recording, and transition of operations.
Regulation D offerings, convertible notes, and fund vehicles for lithium and critical-minerals ventures, coordinated with federal funding programs where available. See energy capital formation.
The East Texas Smackover is the center of gravity: Franklin County and the surrounding Hopkins, Titus, Cass, and Bowie county area, with matters before the Railroad Commission in Austin and in the county courthouses. It is not the only brine play we work. Permian Basin produced-water and lithium-from-produced-water questions turn on the same ownership and permitting analysis; Utah's Paradox Basin brines and Great Salt Lake operations raise parallel leasing, water-rights, and royalty questions under a different statutory regime; and Arkansas and Louisiana Smackover projects come to us for transaction structure and capital formation. Outside Texas and Oklahoma we work with local counsel on state-specific title and permitting.
Five questions shape lithium-brine work in Texas today. Each has published authority behind it; none is fully settled.
Two structural facts follow. Texas has no statutory brine unitization (Arkansas does), so contiguity is assembled contractually and, under Rule 82, through participation, exceptions, and special field rules. And the 90th Legislature convenes in January 2027 with brine ownership unresolved, so any multi-year project should plan for legislative activity.
We will publish on each of these as they develop; our Insights series launches this fall.
Companies assembling acreage and permits for direct lithium extraction in the Smackover.
Operators with existing Smackover or Permian production evaluating brine rights, produced-water lithium, or lease amendments.
Capital providers diligencing a lithium position or forming a vehicle to hold one.
Surface and mineral owners with a brine lease offer in hand who want it read by counsel who knows the developer's side.
No Texas statute or appellate decision answers the question directly, but the existing authorities point in a direction. Robinson v. Robbins Petroleum (Tex. 1973) holds that salt water is ordinarily incident to the surface estate, while expressly leaving open the case in which water is produced because a dissolved mineral is valuable enough to justify extraction. Cactus Water Services v. COG Operating (Tex. 2025) resolved control of produced water under the oil-and-gas leases before the Court and expressly disclaimed any view on ownership of non-hydrocarbon minerals in the stream. Natural Resources Code §141.004 vests geothermal energy and associated resources in the surface owner but, by subsection (c), excludes minerals dissolved in hot brines and preserves existing law on their extraction — so it neither vests the lithium in the surface owner nor takes it away. And the surface estate owns the subsurface structure itself (Lightning Oil v. Anadarko; Myers-Woodward v. Underground Services Markham). Senate Bill 1763, which would have declared brine minerals part of the mineral estate, did not pass in 2025. The question is open in both directions, and on any given tract it turns on the specific instruments in the chain of title. We examine those instruments, advise on how each estate's claim stands under the existing authorities, and structure leases and projects so that they remain workable however the question is ultimately resolved.
Not necessarily, and the answer turns on project purpose. Statewide Rule 82 (16 TAC §3.82) regulates "brine production projects" — projects the purpose of which is the extraction of brine resources — and their Class V spent-brine return wells. Its definitions expressly exclude brine produced as an incident to oil and gas production and route those fluids to the oil-and-gas rules; they are silent as to fluids produced as an incident to geothermal production, which Chapter 141 places within the geothermal resource framework. A well that injects geothermal working fluid into a reservoir productive of geothermal resources is permitted under Statewide Rule 46 (16 TAC §3.46) on a GT-5, and the Commission has held EPA Class V primacy for geothermal injection since 1982 — whereas Class V primacy for spent-brine return wells is still pending, so a Rule 82 project needs an EPA permit in the interim. Where a project's purpose is brine extraction, Rule 82 governs; where mineral recovery is incidental to geothermal production, the classification question is less settled and turns on the project's actual purpose and conduct. We advise developers on which program applies to their project, prepare the corresponding permit applications, and keep the regulatory classification question distinct from the separate question of private ownership.
A project permit and per-well authorizations; a good-faith claim to the brine resource under every tract; a minimum project acreage per production well (1,280 surface acres under the adopted rule, with density, spacing, and contiguity exception processes and the possibility of special field rules); half-mile setbacks from the project boundary and from non-participating interests; per-well financial security and an active P-5; well-construction and reporting standards; Class V spent-brine return wells re-injecting into the same brine field; and — until EPA approves the Commission's Class V program — an EPA permit for the return wells. Those acreage and setback features make surrounding-tract title work part of permit planning from the start. We prepare the permit package, advise on acreage and exception questions, and represent applicants in any protest that follows.
Not before someone reads it against the surface and mineral title for the tract. Brine lease forms circulating in East Texas vary widely on the granting clause, the definition of "brine minerals," royalty basis (gross value of lithium compounds versus net of processing costs), pooling and unitization authority, shut-in and continuous-operations provisions, and what happens if the law later assigns brine to a different estate. We review lease offers for a flat fee and can negotiate the form for you.
Generally no. A conventional opinion answers who owns oil, gas, and associated hydrocarbons and who is entitled to production proceeds. A brine project needs the examiner to trace surface ownership, groundwater and salt-water rights, prior brine, salt, or sulfur leases, geothermal reservations under Natural Resources Code Chapter 141, and any express treatment of "other minerals" in the chain — then reach a supportable conclusion on which estate the brine minerals most likely belong to. We issue brine mineral title opinions on that basis. More on title opinions.
Our attorneys are licensed in Texas and Oklahoma. For Arkansas and Louisiana Smackover matters, and for Utah brine projects, we work alongside local counsel we know and trust, typically handling the transaction structure, capital formation, and multi-state commercial agreements while local counsel covers state-specific title and regulatory work.
Nothing on this page is legal advice about a specific tract, lease, or project, and the state of Texas brine law changes quickly. Talk to us about your situation before acting.